Freeman v. Dunn

• Decision Date: 02 July 2018
• Docket Number: CASE NO. 2:06-CV-122-WKW [WO]
• Parties: DAVID FREEMAN, AIS No. 0000Z506, Petitioner, v. JEFFERSON S. DUNN, Commissioner, Alabama Department of Corrections, Respondent.
• Court: U.S. District Court — Middle District of Alabama

DAVID FREEMAN, AIS No. 0000Z506, Petitioner, v. JEFFERSON S. DUNN, Commissioner, Alabama Department of Corrections, Respondent.

CASE NO. 2:06-CV-122-WKW [WO]

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

July 2, 2018

MEMORANDUM OPINION AND ORDER

PetitionerDavid Freeman filed this federal habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his June 1996Montgomery County conviction for capital murder and sentence of death.For the reasons set forth below, Petitioner is not entitled to either habeas corpus relief or a Certificate of Appealability.¹

I.BACKGROUND

A.The Offense and Aftermath

In the early morning hours of March 12, 1988, Deborah Gordon returned to her home in Montgomery, Alabama to find the porch light off and the front doorajar.²When she entered the house, it appeared to have been ransacked.³Deborah discovered her seventeen-year-old sister Sylvia's lifeless body lying beneath a blanket on Sylvia's bed.⁴When Deborah pulled the blanket off Sylvia, she saw stab wounds on Sylvia's chest.⁵Fearful, Deborah backed out of Sylvia's room and decided to leave.⁶After searching for her car keys, she began to do so.⁷As she exited the house, Deborah saw her mother Mary's bare legs through the doorway to her mother's bedroom.⁸She saw no signs of life in either her mother or sister.⁹Deborah drove to a nearby store and called police.¹⁰

The medical examiner determined after autopsy that (1)Mary Gordon(age 42),¹¹ whose body was clad only in her shirt and bra (both of which had been cut), sustained eleven major stab wounds, (2) several of Mary's stab wounds were post-mortem, (3) more than one of her stab wounds would have been fatal independently, (4) Mary died of multiple stab wounds to her abdomen and chest, (5)she also sustained numerous smaller cuts, scratches, and abrasions, and (6) Mary may have survived as long as five-to-ten minutes and been conscious for up to three minutes after her first wound.¹²A forensic pathologist testified via stipulation that vaginalswabs taken from Mary Gordon during autopsy contained semen consistent with that of Petitioner.¹³

The medical examiner determined after autopsy that (1)Sylvia Gordon(who was clad only in her socks, bra and tee shirt with her bra and tee shirt pulled up over her head and behind her neck) had twenty-one major injuries plus a number of smaller cuts and scratches, (2) there were a number of very small tears in the lining of Sylvia's vagina, (3)he could not determine whether those vaginal tears were pre-or post-mortem, (4) all but one of Sylvia's wounds were pre-mortem, (5) Sylvia's neck showed bruising as well as tearing of the skin consistent with pressure having been applied to the front of her neck, (6) her vocal cords hemorrhaged, (7) Sylvia died as a result of blood loss, (8) the cause of Sylvia's death was multiple stab wounds, none of which would have been fatal independently, and (9) Sylvia could have survived for up to ten minutes and been conscious for as long as eight minutes after the assault upon her commenced.¹⁴

Deborah Gordon reported to police that, when she left her home the previous afternoon, her sister was sitting with Petitioner in the living room, Sylvia had been seeing Petitioner, and Sylvia had informed Deborah earlier that day she planned to breakup with Petitioner.¹⁵Deborah also reported that her mother's Silver Pontiac Sunbird was missing.¹⁶Every telephone inside the Gordon home had either been pulled from the wall or had its wires cut.¹⁷

Mary Gordon's missing Pontiac Sunbird was located in downtown Montgomery a short distance from an apartment occupied by Petitioner and his roommate.¹⁸More specifically, an officer testified Mary Gordon's missing Pontiac Sunbird was located at seven a.m. on March 12, 1988 on Scott Street between SouthCourt and South Perry Streets.¹⁹A fingerprint examiner testified via stipulation that a latent fingerprint lifted from the top of the vehicle above the driver's side door matched Petitioner.²⁰Inside the vehicle, police discovered a butcher knife on the rear floorboard, which knife a tool-mark examiner testified via stipulation was consistent with the cuts observed in the ribs of both victims and their clothing.²¹

Hours later, police arrived at an apartment in Montgomery where they found Petitioner wearing a bandage over one hand.²²After Petitioner's roommate gaveconsent to a search of the apartment, police discovered several items of Petitioner's clothing in a closet containing what appeared to be bloodstains.²³Police arrested Petitioner.²⁴A former Montgomery police officer testified he collected the Petitioner's blue jeans, briefs, jacket (containing a knife sheath in the lining), and shoes from the apartment where Petitioner was arrested and took photographs of Petitioner's bandaged hand and the butcher knife recovered from the rear floorboard of Mary Gordon's vehicle.²⁵Forensic tests of the blood found on Petitioner's clothing, including his underwear, showed it matched that of the victims.²⁶Hairs found inside the front pocket of Petitioner's jeans matched the head hair of Sylvia Gordon.²⁷

Both a partial bloody shoe print found on the blouse of Mary Gordon and a separate partial bloody shoe print found at the crime scene were consistent with one of Petitioner's shoes.²⁸Sylvia Gordon's blood was present in multiple locationsthroughout the Gordon home.²⁹The clothing of both victims had been cut extensively.³⁰Forensic testing on a blue and white checkered cloth found at the crime scene showed it contained blood consistent with the victims and semen consistent with Petitioner.³¹

Petitioner was arrested on March 12, 1988.³²The same day, Petitioner gave police an audiotape recorded statement in which he denied any knowledge of the Gordon murders.³³

Two days later, Petitioner consented to have bite marks on his arms photographed and thereafter gave police a handwritten written statement in which he again denied any knowledge of the Gordon murders.³⁴Later the same day,however, Petitioner furnished police with another handwritten statement in which he stated that (1) during his conversation with Sylvia he"sort of blanked out,"(2) when he"came to" her mother was coming in the door, (3)he saw a knife in his hand and he felt he had no choice so he stabbed her mother, (4)he wrapped a bandage around a cut on his hand, (5) when he exited the bathroom he"saw both of them trying to get to the phone,"(6)he ran over and got all of the phones off the walls, and (7)he got the keys to the silver car and left.³⁵The same date, Petitioner gave police an audiotape recorded statement in which he admitted he stabbed Mary Gordon once in the back and took her car but denied assaulting Sylvia Gordon and denied sexually assaulting either victim.³⁶

B.Indictment

In June 1988, a Montgomery County grand jury indicted Petitioner on six counts of capital murder.³⁷

C.First Trial

Jury selection in Petitioner's first capital murder trial commenced on August 14, 1989.³⁸The guilt-innocence phase of trial began the next day.³⁹On August 19, 1989, the jury returned its verdict, finding Petitioner guilty on all six counts.⁴⁰Thesentencing phase of Petitioner's first capital murder trial took place on August 21, 1989.⁴¹At the conclusion of that portion of Petitioner's first capital murder trial, the jury recommended by a vote of eleven-to-one that Petitioner receive the death penalty.⁴²On October 5, 1989, the state trial court heard arguments from both parties regarding sentencing.⁴³On October 18, 1989, the trial judge imposed the sentence of death.⁴⁴

D.First Direct Appeal

Petitioner appealed his conviction and sentence.In an opinion issued May 6, 1994, the Alabama Court of Criminal Appeals reversed Petitioner's conviction, based upon a Batson violation, and remanded for a new trial.Freeman v. State, 651 So. 2d 576(Ala. Crim. App.1994), cert. denied(Ala. 1994).

E.Second Trial - Mistrial

The guilt-innocence phase of Petitioner's second capital murder trial commenced on January 25, 1996.⁴⁵On January 31, 1996, the state trial court held ahearing during which (1)Petitioner's lead trial counsel explained he was not physically able to continue with Petitioner's trial due to illness and offered no indication when he might be able to continue the trial, (2)Petitioner's co-counsel advised the trial court that his wife, a nurse, believed lead counsel should be hospitalized and expressed a strong preference that the trial not continue without the presence of Petitioner's lead counsel, (3)the prosecution agreed that lead defense counsel appeared unable to continue with the trial and expressed a desire that Petitioner receive effective representation, and (4)the trial court reluctantly declared a mistrial, noting the trial had already been continued for almost a week, and reset the case for February 26, 1996.⁴⁶Neither party objected to the trial court's declaration of a mistrial or urged reconsideration of that ruling.

F.State Mandamus Proceedings

On February 21, 1989, Petitioner filed a motion to dismiss the indictment against him, arguing that (1) jeopardy attached at the commencement of his second capital murder trial, (2) the state trial court erroneously ordered a mistrial without finding on the record "any reasons of manifest necessity that would warrantdeclaring a mistrial" as opposed to a continuance, and (3) under such circumstances, Petitioner's retrial would violate Double Jeopardy principles.⁴⁷The state trial court denied Petitioner's motion to dismiss the indictment on Double Jeopardy grounds.⁴⁸

On February 22, 1996, Petitioner filed a petition for writ of mandamus with the Alabama Court of Criminal Appeals urging the same Double Jeopardy argument and seeking an order directing the trial court to dismiss the indictment against him.⁴⁹The same date the Alabama Court of Criminal Appeals denied Petitioner's petition for writ of mandamus.⁵⁰Petiti...